The Comeycoaster took another thrilling turn Monday night, when reports emerged that President Donald Trump asked the director of national intelligence and the director of the NSA to publicly discredit the FBI’s investigation into his campaign’s ties with Russia. This came on the heels of leaked Oval Office transcripts, which revealed that Trump had informed the Russians that he had fired the “nut-job” former Director of the FBI James Comey because of “pressure” he was facing from the FBI investigation.

Most legal analysts seized on the leaked transcripts as further evidence that the president’s decision to fire Comey was an attempt to obstruct justice. But on Twitter, former Acting Solicitor General Neal Katyal noted the conspicuous lack of pushback on the issue from the White House. In particular, Katyal honed in on Press Secretary Sean Spicer’s explanation that Comey firing was necessary because he had made it difficult for the president to “engage and negotiate with Russia.” Katyal suggested that by connecting Comey’s firing to diplomatic goals, White House lawyers might be laying the groundwork for a “foreign policy defense” to potential charges of obstruction of justice.

If this is true, the defense could be potentially brilliant—or brilliantly stupid.

A foreign policy defense would rest on the separation of powers principle that the president enjoys relatively unfettered discretion in the realm of foreign affairs. This idea is most powerfully expressed in language from a 1936 Supreme Court case in which the court acknowledged “the very delicate, plenary and exclusive power of the President as the sole organ of the federal government in the field of international relations.” Under this view, courts should not second-guess the president on foreign policy decisions, not only because the United States must speak with “one voice” when dealing with the outside world, but also because to do so would hinder the executive’s ability to make critical and fast-paced decisions in which he alone possesses the necessary information and expertise to act in the country’s interests. Presidents of both parties have long relied on this principle to defend challenges to executive actions like negotiations for hostages, designation of groups as foreign terrorist organizations or formal recognition of foreign governments.

A foreign policy defense, then, could function as the ultimate get-out-of-jail-free card. With regard to obstruction charges, the president would effectively be saying, “Sure, I tried to get the FBI to lay off the Russia investigation, but it was because I wanted to improve our relationship with Russia—so butt out.” Whether this could be a viable defense has yet to be tested, since literally no one besides the president could invoke it. President Richard Nixon didn’t mount a defense against obstruction charges since he was pardoned before he could be tried, and no other president has attempted it in other contexts. (President Ronald Reagan could have potentially employed this defense in Iran-Contra, but that of course would have undercut his primary defense, which was that he had no idea what was going on.)

Still, while interesting in theory, using foreign policy goals to defend against criminal charges has some serious implications. A typical—meaning, extreme and unrealistic—law school hypothetical can illustrate this. Say that the leader of North Korea, Kim Jong Un, is willing to stop further development of nuclear weapons— except that he finds a particular American citizen, who keeps posting obnoxious memes about him on the internet, to be especially irksome. The supreme leader tells the U.S. president that, if that citizen is “eliminated,” he will dismantle his nuclear arsenal once and for all. Can the president murder the citizen in the interest of establishing international security and world peace? I’m going to go out on a limb and say no. Allowing the president to engage in illegal acts even for the loftiest of foreign policy goals would be an unwise precedent to set, to say the least.

In fact, the relationship of the means to an end is at the heart of the trickiest part of the obstruction of justice statute, which is to prove that the defendant acted with “corrupt” intent. According to Renato Mariotti, a former federal prosecutor who has tried obstruction cases, one legal definition of acting “corruptly” is if the defendant acts “with the purpose … of accomplishing … a lawful end result by some unlawful method or means.” Using this definition, acting illegally—in this case, trying to derail a federal investigation into violations of U.S. law—would still count as “corrupt,” even if the end goal were a legitimate foreign policy objective like improving relations with an adversary.

The White House defense team would likely respond with a counterargument of their own: That the events leading up to Comey’s firing, and the firing itself, were not themselves “unlawful.” It’s true that the evidence that the president was in fact trying to stop an ongoing investigation is largely (though decreasingly) circumstantial. The trail suggesting an improper motive—including asking that Comey take a “loyalty oath,” a request that he “let go” of the investigation into former National Security Adviser Mike Flynn, and even Trump’s own admission that he fired Comey because he thought the entire Russia inquiry was a “hoax”—do not, even taken together, necessarily paint a clear-cut picture of illegality.

But here’s where there’s even more bad news for the defense. A second definition of “corrupt” intent is whether the defendant acted “with the purpose, at least in part, of accomplishing … an unlawful end result.” For Trump’s foreign policy goals to be lawful, they would need to be legitimate—meaning they would have to be done for the sake of furthering the country’s interests, rather than his own. This gets to the entire crux of the FBI’s investigation into possible collusion between Russia and the Trump campaign, and possibly Trump himself. If Trump stood to personally gain, even “in part,” from smoothing over relations with Russia—either as an implied or express quid pro quo for election help, financially, or to avoid being compromised by damaging information in the Russians’ possession—his intent would still meet the legal standard for obstruction of justice.

It’s possible that, at the end of its long investigation, the FBI will end up not finding evidence that Trump was personally connected to Russia’s election interference. (And I’m so far, without additional facts, not addressing the possible personal benefit to Trump if he acted because members of his family are potential targets of the investigation.) If so, this could be a clever and winning strategy for the president against potential charges of obstruction of justice. But anticipating such a defense would continue to place the outcome of the Russia investigation front and center, and possibly even merit intensifying it if obstruction charges become a real possibility in the short term. This is likely the exact opposite of what Trump wants, since it would only increase the pace of the FBI investigation currently creeping like Birnam Wood towards the White House.

Meanwhile, the Russians, having no clue about American constitutional principles, may have undercut this potential defense altogether in a clumsy attempt to help Trump out. On Sunday, Russian media issued reports that no discussion of Comey ever took place when the president met with their foreign minister—probably thinking that the denial would help their new friend in the Oval Office. Still, you can’t blame the president’s lawyers for trying to find any ad hoc defense to make sense of Trump’s unpredictable and self-incriminating utterances. That they have to do so illustrates how ineffective they have been in convincing their client to heed the most basic defense advice anyone in his shoes should get, which is simply not to say anything at all.

Source: http://www.politico.com/magazine/story/2017/05/23/trump-comey-russia-obstruction-of-justice-foreign-policy-215179

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